The Age Discrimination in Employment Act of 1967: Congressional Intent Congress enacted the Age Discrimination in Employment Act (ADEA) more than 50 years ago because they recognized that older workers are often disadvantaged in their efforts to retain employment and regain employment when they lose a job. At that time, many employers were setting arbitrary age limits on jobs, essentially forcing workers to retire once they reached a certain age. As a result, older workers were frequently under-employed and faced a decline in skills and morale in the workforce. At the same time, with rapid advances in medical technology and healthcare, Americans were living longer, healthier, and more productive lives. The outdated practice of setting age limits for employment purposes no longer made business and economic sense. ADEA Regulations According to the EEOC, age discrimination involves treating an applicant or employee less favorably because of his or her age. The law protects people age 40 and older, although some states have laws that protect younger workers from discrimination. Texas laws nearly mirror the ADEA, protecting older workers once they turned 40. Unlike other anti-discrimination laws, the ADEA does not prohibit “reverse discrimination.” That means it is perfectly legal for an employer to favor older workers over a younger worker, even if both workers are over the age of 40. As Texas employee rights advocates, one of the most common questions we’re asked is, “what exactly does ‘less favorable’ treatment mean?” Therein lies the million-dollar question. “Less favorable treatment” is broadly defined to include unfair treatment with respect to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and benefits. To put it simply, unfair treatment with respect to any term or condition of employment can land an employer in hot water. Even employment policies that apply to every employee, regardless of age, can be illegal if they have a negative impact on applicants or employees aged 40 or older. There are some very narrow exceptions to this rule, such as when the employment policy is based on a “reasonable” or “bona fide occupational qualifier” other than age. Because of the ADEA’s requirements, employers cannot include age preference, limitations or specifications in their job notices or advertisements. While it is not explicitly prohibited by the Act, employers shouldn’t ask an applicant’s age during the interviewing process either. Employers may need to know an employer’s date of birth after hiring in order to comply with other laws, but they do not have a reasonable justification for asking for this information prior to hiring. If you are asked your age during the interview process, you are fully within your rights to deny age information until after hiring. When an employer violates the ADEA, they can be liable for a worker’s attorney fees, lost wages, compensatory damages (money to cover other losses beyond wages) and punitive damages. This means ADEA violations could lead to significant financial losses for employers. This may be why 5-10% of ADEA claims end in settlement before the EEOC ever reaches a resolution. If you are over 40 and feel you’ve been treated unfairly due to your age, it’s important to consult with an experienced employee rights attorney as soon as possible. Employees only have 180 days after a qualifying incident occurs to file a charge with the EEOC, and Federal employees only have 45 days to contact an EEO counselor, so time is of the essence. Most people are reluctant to contact an attorney because they are unsure whether they have an actionable claim and they fear costly consultations. At Jackson Spencer Law, we offer free consultations to our Texas clients and analyze their chances of success during the initial meeting. Related Laws The ADEA is not the only law protecting older workers. The Older Workers Benefit Protection Act of 1990 (OWBPA) specifically prohibits employers from denying benefits to older employees. Years after the ADEA was enacted, employers were using loopholes in the ADEA to deny benefits like insurance, retirement, and vacation to older employees. Congress acted to prohibit this new form of age discrimination through the OWBPA. If an employee over the age of 40 discovers they aren’t being offered the same benefit terms as younger employees, they may have an actionable charge under the OWBPA. The ADEA also makes it unlawful to harass a person because of their age. Harassment may include derogatory remarks or offensive behavior that is so severe it creates a hostile or offensive work environment. As with any other form of harassment protection, employers can be liable for the harassing behavior of management, supervisors, co-workers, and even customers or clients of a business. If a customer or client consistently engages in harassing behavior and the employer is notified and fails to act to prevent further harassment, they can be held liable for their inaction. Like most anti-discrimination laws, the ADEA protects employees from retaliation. An employer is legally prohibited from retaliating against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding or litigation under ADEA. Thanks to Congress’s foresight, older workers have rights and protections in the workplace.
In California, these include race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status. Advertisements should thus not restrict, exclude or classify potential candidates based on any such protected class. For example, do not use language indicating a preferred age range under age 40, such as “young and energetic,” “youthful,” “recent college graduate,” “boy,” “girl,” or “must have grown up using technology from an early age.” Also steer clear of terms such as “must be a U.S. citizen” (unless the job legally requires it for government clearance, etc.) or “the ideal candidate is a single person able to travel frequently.” Best practices include: • Use gender-neutral job titles, such as foreperson and salesperson • Ensure you are not restricting or preferring individuals on the basis of any “protected class” • Include the phrase “An Equal Opportunity Employer” with the job listing • When including images with your job posting, make sure they represent a diverse population For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin. Cindy Bamforth August 2, 2019
Introduction Under the Age Discrimination in Employment Act (ADEA) and the Colorado Anti-Discrimination Act (CADA), it is unlawful to discriminate against an individual who is over the age of 40. Although the prohibition against discrimination is similar to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), the available damages in age discrimination cases differ greatly. Back-pay A plaintiff in an age discrimination case can be awarded back-pay. “[T]he ADEA provides for legal and equitable relief, including reinstatement, back-pay, and other pecuniary benefits associated with the job, but it does not permit the recovery of compensatory damages.” Ridgell-Boltz v. Colvin, 565 Fed. App’x 680, 683 (10th Cir. 2014) (citations omitted). Pecuniary damages include “only those pecuniary benefits connected to the job relation, including unpaid wages or overtime compensation.” Id. (quoting Collazo v. Nicholson, 535 F.3d 41, 44-45 (1st Cir. 2008)). Front Pay In the Tenth Circuit, front pay is available under the ADEA. See EEOC v. Prudential Federal Sav. & Loan Assoc., 763 F.2d 1166, 1171-73 (10th Cir. 1985) (citations omitted). An award of front pay can be continued until the plaintiff reasonably would have retired where the plaintiff presents evidence that she has little chance of finding employment comparable or superior to her former position. Hayes v. SkyWest Airlines, Inc., Civ. Act. No. 15-cv-2015-REB-NYW, 2018 U.S. Dist. LEXIS 163023, *17-18 (D. Colo. Sept. 24, 2018) (awarding 52-year-old plaintiff front pay until he is 65 years old) (citations omitted). See also Rupp v. Purolator Currier Corp., Nos. 93-3276 & 93-3288, 194 U.S. App. LEXIS 36233, *6-*7 (10th Cir. Dec. 20, 1994) (affirming award of “front pay in an amount representing the present value of the difference in pay between his old job and new job, for a period up to his expected date of retirement at age sixty.”); Wulf v. City of Wichita, 883 F.2d 842, 873-74 (10th Cir. 1989) (not disturbing trial court’s award of front pay until 8 years following the date that the plaintiff’s pension would have vested). Liquidated Damages Liquidated (double) damages are awardable on the back-pay portion of an award of relief (but not front pay) if the employer’s violation of the ADEA was willful. See Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1556-57 (10th Cir. 1988) (citations omitted). Compensatory and Punitive Damages As noted above, compensatory damages are not available in age discrimination cases. This means that non-pecuniary (non-monetary) and pecuniary (monetary) damages cannot be awarded. Pecuniary benefits associated with the job can be awarded. Punitive damages are not available. Attorneys’ Fees For private sector employees, attorneys’ fees can be awarded by the court. However, in the federal sector administrative EEO complaint process, compensatory damages and attorneys’ fees are not available for a violation of the ADEA. Estelle L. v. Dep’t of the Army, EEOC App. No. 0120143049 (Sept. 2, 2016) (citing Taylor v. Dep’t of the Army, EEOC Req. No. 05930633 (Jan. 14, 1994) and Seymour & King v. Dep’t of Veterans Affs., EEOC Req. Nos. 05900257 and 05900256 (July 20, 1990)). What types of damages are recoverable in your case? The Wick Law Office represents public and private employees in Colorado in a variety of employment matters, including claims of age discrimination. Please contact us for more information or to discuss your specific situation.
File Your Complaint The EEOC enforces federal employment rights protections. If you face discrimination because of race, gender, sex, age, religion, or disability, you can file a complaint with the EEOC. The EEOC also handles sexual harassment and retaliation complaints. The EEOC makes it easy to file a complaint. You can file your complaint online or in person at an EEOC office. You can also file at any state or local Fair Employment Practice Agency, by mail, or by phone. You have 180 days to file a claim, or 300 days if you are also filing with a state or local agency. Mediation Before investigating your complaint, the EEOC may suggest mediation between you and your employer. The process aims to resolve the dispute without an investigation or lawsuit. During mediation, you and your employer meet with an EEOC mediator to work toward an agreement. The mediation is not legally binding in the same way as a lawsuit. The mediator cannot order either side to accept the agreement. You have the right to refuse mediation. If you decline to participate, the EEOC will open an investigation EEOC Investigation If you decline mediation or the mediation process does not reach a solution, the EEOC will open an investigation. During this step, the EEOC will investigate your claims. They may interview your employer, visit your workplace, and interview witnesses. The EEOC can also request personnel files, company policies, and other documents that may prove your case. If the EEOC investigation cannot determine whether a law has been broken, you will receive a Notice of Right to Sue letter. This letter lets you file a lawsuit in court against your employer. In this case, your case skips to step 6. If the EEOC investigation uncovers a legal violation, the EEOC will pursue a settlement for your case. Settlement During the investigation, the EEOC may uncover evidence that your employer broke the law. The EEOC can then pursue a settlement with your employer. The settlement can include compensatory and punitive damages. EEOC Lawsuit The EEOC may not be able to reach a settlement with your employer. In this case, the EEOC can file a lawsuit on your behalf. Even though the EEOC files the suit, you may benefit from having your own lawyer to help you navigate the process. The EEOC can also choose to issue you a Notice of Right to Sue so that you can file your own lawsuit. Notice of Right to Sue After the EEOC investigation, the EEOC will issue you a Notice of Right to Sue. This letter gives you permission to file your lawsuit in court. The notice also acts as the end of the EEOC's investigation of your claim. A Notice of Right to Sue says nothing about the strength of your case. It simply means the EEOC will not be able to conclude the case itself. Once you have received the notice, you must file your lawsuit within 90 days. For that reason, it's a good idea to reach out to employment lawyers by the time you file the EEOC complaint. You can also request a Notice of Right to Sue from the EEOC at any point after filing your complaint. If more than 180 days have passed, the EEOC must give you the notice. You can receive the notice sooner if the EEOC cannot finish its investigation within 180 days. File Your Lawsuit At the close of the EEOC investigation, you can choose to file your own lawsuit. EEOC investigations may end with a settlement negotiated during mediation or by the EEOC after its investigation. If neither of these options works, you can file a lawsuit. An employment lawyer can help you navigate the process of filing an EEOC claim and then filing a lawsuit. The EEOC can also recommend employment lawyers to help with your suit.
Step 1: CONSULT WITH AN ATTORNEY OR THE IDAHO HUMAN RIGHTS COMMMISSION If you believe you have been discriminated against because of your race, color, religion, national origin, sex, age (40 and older) and/or disability, you must file a Complaint with the Idaho Human Rights Commission before you can file an actual lawsuit. Failure to file a complaint with the IHRC may cause you to waive your right to pursue a lawsuit and enforce your legal rights. Generally, you must file your complaint with the Human Rights Commission within a certain number of days (for most forms of discrimination that means filing a Complaint with 180 days from the date the discrimination occurred). In Idaho, filing a Complaint with the Idaho Human Rights Commission also satisfies your requirement to file with the federal EEOC. The one exception is if you are a federal employee and you want to file a claim against your federal employer, you must file with your Federal Department's EEO Office. If you are unsure whether you have a valid Complaint, you should usually err on the side of causation and consult with an experienced attorney as soon as you believe discrimination has occurred. An experienced employment attorney can help you evaluate your case and discuss potential remedies and the proper way to preserve your legal rights. Many employment attorneys also prefer to help you through the Human Rights Commission process, and many attorney's prefer to consult with their clients before they file a complaint. An attorney with knowledge of employment laws can be invaluable through this process, and also ensure you protect your rights. However, it is not a legal requirement to have an attorney represent you, and some individuals choose to file their Human Rights Complaint without the assistance of counsel. The Idaho Human Rights Commission also offers a intake questionnaire that you can fill out, and the Human Rights Commission can provide some guidance (although it is important to keep in mind the Human Rights Commission cannot serve as your attorney and cannot offer you legal advice. They can, however, help assist you in filing a formal complaint). The IHRC quesitonaire link can be accessed here: https://www2.labor.idaho.gov/IHRCQ Step 2: WHAT TO INCLUDE Generally, your Complaint should include your full name, address, telephone number, and identify the basis you believed you have been discriminated on (race, age, gender, etc.) Second, you should also identify your employer, including the name of the person or company, an address of where you worked, mailing address for the company, and the name of your boss or supervisor. If you work for a large corporation, it can be helpful to search the Idaho Secretary of State website and find the official registered agent for the discriminating company. The Secretary of State business search can be completed here: https://sosbiz.idaho.gov/search/business Your Complaint should lay out the basic WHO, WHAT, WHEN, WHERE, and HOW you allege the discrimination occurred. It is usually best if it is typed on a computer, rather than handwritten. If possible, list witnesses who can corroborate your complaint, and include as much detail as you can remember. As a general matter, timing is extremely important in any employment dispute. It's helpful to state when you began working for the employer, and try to pin down specific dates and set forth the general timeline of events. Whenever possible, make sure to document any instance in which you may have complained to your supervisors or other employees about the discriminatory behavior. If you have written proof (emails/photos/text messages/etc.) you can also attach those documents to your Complaint to prove your case. Once you have filled out your Complaint, you will need to physically sign the document. You can mail your Complaint to Idaho Commission on Human Rights, 317 West Main Street Boise, ID 83735-0660. You will receive a packet of information back, including waivers and releases of information that you must sign and return to the Idaho Human Rights Commission. At that time, an investigation into your Complaint will begin. Your employer will have the opportunity to read your Complaint, and respond. Many (if not most) employers will hire legal counsel to formulate the response. Generally the employer is supposed to respond to each and every allegation you made in your original complaint, and many employers will also include documentation to try and refute your allegation of discrimination. You will then get a chance to reply, and include any other documentation you have proving your complaint or demonstrating that the employer's response was inaccurate. After you provide your response, the Idaho Human Rights Commission will investigate the claim, which may take up to 365 days from the date of your initial complaint. In most cases, the Human Rights Commission will make a finding of whether your Complaint has probable cause or not. Regardless of the Commission's finding, they will issue a Notice of Right to Sue, and in order to pursue your claim for discrimination further, you will have to file a lawsuit within 90 days of the Notice. For this reason, it is usually best to have already consulted with experienced legal counsel to help you protect your personal interests.
Less Intensive (and Less Public) Options First, getting advice from an attorney (without the attorney "appearing*" is usually the best option when an individual has been let go and has been offered a decent severance. Often, when an employer ends someone*s employment involuntarily, they will offer a severance payment. The advantage of entering into a severance agreement is that it avoids a legal fight with the employer. Additionally, this option can help you avoid having a legal dispute with your employer aired publicly. Finally, this kind of work by an attorney is usually not very time consuming nor expensive. The second option is for your attorney write a demand letter setting forth the facts and law in an attempt to motivate the employer to offer a better deal. This can turn up the heat. That is because the employer now knows that you are represented. It also accuses the company of age discrimination. Most sophisticated employers with experienced HR or legal staff get these letters routinely and are not shocked by them. However, smaller employers make take it personally. Ultimately, the leverage that this kind of letter exerts, usually puts more settlement pressure on an employer. These demand letters often do lead to settlements. A pro of this methodology is that it is private. It is unlikely that the outside world will know that you threatened litigation. The down side with demand letters is that employers do not always take them seriously. Some employers will not make offers because they do not believe that the employee will follow through with a lawsuit. And some smaller employers just don't realize the seriousness of the threat of legal action. An individual can file claims of discrimination with the Equal Employment Opportunity Commission or with state administrative agencies. Usually, little of substance happens at the EEOC. But the EEOC does offer mediation. These are informal sessions in which the parties are encouraged to try to come to a settlement. Many cases settle during this process. A positive of the EEOC is that even though the filing is technically a public record, there are few practical ways for most outsiders to obtain a copy of your filings (or even know that you filed). You can also file with some other state and local administrative agencies. Some will do more than investigate and can award money damages. However, there are usually severe limits on the awards available. More Intensive (and More Public) Options Next, you can file a lawsuit. This is the most time consuming option. Litigation can go on for years. You will spend countless hours on: reviewing documents and information to give to you lawyer; answering hundreds of questions; preparing for and sitting for a your deposition; attending witnesses depositions; preparing for and testifying at trial. If you get a new job quickly, you may lose interest in your lawsuit. You will probably want to focus on your new job instead. However, if you have little to lose and lot to gain by litigating, then it helps to make the choice to fight much easier. Clients must also consider reputational issues. Unfortunately, even if you are in the right, other people (and other prospective employers) may think less of you if you are involved in a lawsuit. Prospective employers may view you as "litigious" and not want to hire you for fear that you would cause them trouble. There is no getting around the risk that this perception could harm your career. Filing a lawsuit is public. Reporters can go to the courthouse (or online) and find out about your case and make it front page news. More likely though, is the prospect that a prospective employer could perform an internet search and find out about your case. Sometimes it is hard for them to do this. Other times it is easier (e.g., if you have a unique name). The online visibility of your case can also vary depending upon what court it is filed in. Age discrimination claims can affect people more than most other kinds of wrongs. There are many managers, bankers and professionals who have commanded six or seven figure salaries for years, who then discover that after being fired in their 50's or 60's can no longer get a job (outside of an entry-level retail job). These people see little downside in going all the way and litigating. One of the pros of litigating is that the employer will take your claims much more seriously. The costs, risks and other negatives facing them are much higher. That is why the litigation option usually commands a higher settlement value than any of the other options. But be prepared for your claims to potentially become online-searchable and know that you may have to explain them to future employers. A final option is arbitration. It allows for the same kinds of potential recoveries as in litigation. Arbitration is usually not attractive to plaintiffs because arbitrators are typically harder to sway and impress than juries. And the arbitration process generally has earned a reputation for granting smaller awards than courts. However, the process is mostly private -- a consideration you may find important. An experienced employment attorney should be able to help you weigh all of these options.